Mohamed Yusufu v. Tunda Kassim, (PC) Civ. App. 182-D-67, -/2/68, Georges C. J.

Mohamed Yusufu v. Tunda Kassim, (PC) Civ. App. 182-D-67, -/2/68, Georges C. J.

The respondent claimed that the deceased had given a house to her before her death. She produced a transfer of a right of occupancy thumb printed by the deceased in the presence of the Area Commissioner. In fact, no right of occupancy had been granted to the deceased at the time of the ‘transfer’. She said the deceased had been offered a right of occupancy, but did not take it up. The offer was accepted by the respondent as the done of the land and the land was then registered under the Land Registration Ordinance. This was done after he suit was filed in the primary court, but before that court gave judgment. The appellant, widower of the deceased, disputed the gift.

            Held: (1) The document executed by the deceased was ineffective to pass title to the respondent. (2) The Magistrates’ Courts Act Cap. 537 s. 14(1) inter alia provides that: “No primary court shall have jurisdiction in any proceedings affecting the title to or any interest in land registered under the Land Regulation Ordinance”. Once the land is registered, the primary court has no jurisdiction, and advise her to pursue her remedy in the District Court or the High Court, depending on the value of the property involved, - in this case the District Court. (3) (obiter) The appropriate law to be applied in the District Court will be Islamic Law if that appears to be the law by which the parties consider themselves to be governed. The question of fact to be decided then, would be (a) whether the gift inter vivos (if that is what it was) had been perfected by delivery or, (b) if it was a donation mortise cause (death bed gift), whether the donor had the legal capacity to make it in the absence of the consent of his heirs. (4) Appeal allowed.